United States District Court

for the
EASTERN DISTRICT OF LOUISIANA

JONATHAN P. ROBICHEAUX, et al.,

Plaintiffs
v.

JAMES D. CALDWELL, et al.,

Defendants.

*
*
*
*
*
*
*
*
*
*
*
*
*
*
*
CIVIL ACTION
NO. 13- 5090
(CONSOLIDATED
WITH 14-00097)

SECTION F(5)



JUDGE MARTIN L.C. FELDMAN
MAGISTRATE MICHAEL NORTH

REF: ALL CASES
***************************************

BRIEF AMI CI CURI AE OF LAMBDA LEGAL DEFENSE AND EDUCATION FUND,
INC., ACLU FOUNDATION OF LOUISIANA, AND
NATIONAL CENTER FOR LESBIAN RIGHTS
IN SUPPORT OF PLAINTIFFS






Justin P. Harrison
1
(La Bar No. 33575)
Legal Director
ACLU Foundation of Louisiana
P.O. Box 56157
New Orleans, Louisiana 70156
Tel. (504) 522-0628
Email: jharrison@laaclu.org






1
Attorneys Beatrice Dohrn, Susan Sommer, Shannon Minter and Camilla Taylor
contributed to the writing of this brief but are not admitted to practice in State of Louisiana.
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 1 of 21
2

AMI CI S IDENTITY, INTERESTS, AND AUTHORITY TO FILE
2

Lambda Legal Defense and Education Fund, Inc. (Lambda Legal) is a non-profit
national organization committed to achieving full recognition of the civil rights of lesbian, gay,
bisexual, and transgender (LGBT) people and those living with HIV through impact litigation,
education, and public policy work. Lambda Legal has participated as party or amicus counsel in
numerous challenges to state laws prohibiting same-sex couples from marrying or receiving
legal respect for their existing marriages including as plaintiffs counsel in Henry v. Himes, No.
1:14- cv-129, 2014 U.S. Dist. LEXIS 51211 (S.D. Ohio Apr. 14, 2014), declaring facially
unconstitutional laws similar to those at issue here, and Varnum v. Brien, 763 N.W.2d 862 (Iowa
2009), declaring Iowas marriage ban unconstitutional. Lambda Legal has participated in the
leading Supreme Court cases redressing sexual orientation discrimination, as party counsel in
Romer v. Evans, 517 U.S. 620 (1996), and Lawrence v. Texas, 539 U.S. 558 (2003), and as
amicus in United States v. Windsor, 133 S. Ct. 2675 (2013). Lambda Legal has both an interest
in protecting lesbian and gay couples and their children in every state of the nation and extensive
expertise in the issues before this Court.
The ACLU Foundation of Louisiana is the non-profit advocacy and litigation arm of the
ACLU of Louisiana, which is the state affiliate of the American Civil Liberties Union. The
ACLU is the nations leading organization dedicated to the defense of the constitutional rights of
everyone in this country. As a non-profit, non-partisan organization, the ACLU has defended
the civil liberties of all segments of society without regard to political affiliation or belief. The

2
This amicus brief is filed in accordance with the Courts March 20, 2014 Order. [Rec.
Doc. 75]. No partys counsel authored the brief in whole or in part; no party or partys
counsel contributed money intended to fund preparing or submitting this brief; and no
person other than amici, their members, or their counsel contributed money intended to fund
preparing or submitting the brief.
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 2 of 21
3

ACLU Foundation of Louisiana has participated in many of the leading constitutional cases
litigated in Louisiana and has a strong organizational commitment to ensuring the fair and equal
treatment of all people in Louisiana.
The National Center for Lesbian Rights (NCLR) is a non-profit legal organization
dedicated to protecting and advancing the civil rights of LGBT people and their families through
litigation, public policy advocacy, and public education. Since its founding in 1977, NCLR has
played a leading role in securing fair and equal treatment for LGBT people and their families in
cases across the country involving constitutional and civil rights. NCLR has a particular interest
in protecting same-sex couples and their children. NCLR has served as counsel for numerous
plaintiffs in litigation seeking the freedom to marry and the recognition of same-sex couples
valid marriages in their states of residence, including currently in Kitchen v. Herbert, No. 13-
4178 (10th Cir); Tanco v. Haslam, No. 14-5297 (6th Cir.); and Latta v. Otter, No. 1:13-cv-
00482-CWD (D. Idaho).
Amici fully agree with all grounds Plaintiffs have advanced to strike down
Article XII, Section 15 of the Louisiana Constitution and Article 3520(B) of the Louisiana Civil
Code, which ban recognition of out-of-state marriages of same-sex couples (the marriage
recognition bans or bans). This brief focuses on the infringement of fundamental substantive
due process marriage rights, which requires that the bans be subject to strict scrutiny.
SUMMARY OF ARGUMENT
Recognizing that lesbian and gay individuals share the same fundamental right to marry
that all others enjoy, a growing number of states around the country have eliminated
discrimination in their marriage law, conferring on same-sex couples a dignity and status of
immense import. Windsor, 133 S. Ct. at 2681. Plaintiffs Jon Robicheaux, Derek Robicheaux,
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 3 of 21
4

Courtney Blanchard, Nadine Blanchard, Lauren Brettner, Jacqueline Brettner, Nicholas Van
Sickels, Andrew Bond, Henry Lambert, Carey Bond, Havard Scott, III and Sergio March Prieto,
as well as the married Forum for Equality Louisiana members all wed in states that opened their
doors to same-sex couples and in so doing sought the full dignity, status, and legal protections
that come with marriage. Had they married different-sex spouses, Louisiana would have
welcomed the newlyweds home with open arms, granting full legal recognition to their
marriages. Louisianas 1999 legislative
3
and 2004 constitutional bans
4
on recognition of out-of-
state marriages for same-sex couples deprive Plaintiffs of the right to due process protected
under the Fourteenth Amendment to the U.S. Constitution. For this reason and the others
asserted in Plaintiffs brief, Louisianas marriage recognition bans should be struck down.
The well-settled fundamental right to marry is about far more than obtaining a marriage
license and having a wedding ceremony important as these are as the gateway to the institution
of marriage. The constitutionally-guaranteed right to marry would be worthless if the
government were free to refuse all recognition to a couples marriage once entered, effectively
annulling the marriage as if it had never occurred. Only when the wedding is over, the guests
are gone, and the couple returns home as spouses, does marriage as a way of life commence.
Griswold v. Connecticut, 381 U.S. 479, 486 (1965). In the words of the Supreme Court,
marriage is an enduring bond, a commitment to remain together for better or for worse, a
bilateral loyalty, an association for [a] noble . . . purpose. Id. This constitutionally-protected
status is a far-reaching legal acknowledgment of the intimate relationship between two people,
Windsor, 133 S. Ct. at 2692, a commitment of enormous import that spouses carry wherever they
go throughout their married lives. But as soon as married same-sex couples set foot in

3
See La. Civ. Code art. 3520(B).
4
See La. Const. art. XII, 15.
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 4 of 21
5

Louisiana, the States marriage recognition bans strip them of their rights and dignity as married
spouses. The bans strike at the heart of the right to be married, violating the fundamental due
process and equal protection rights of lesbian and gay spouses.
Defendant wrongly attempts to recast the right to marry asserted here as a novel right
to marry a person of the same sex. Loving v. Virginia, 388 U.S. 1 (1967), establishes that a state
violates its residents right to marry if it refuses recognition to their marriages based on
unjustified disagreement with a persons choice of spouse, no matter how steeped in history and
tradition that disagreement is. In this respect, Loving is but one in a long line of cases
establishing that courts define fundamental rights by the nature of the liberty sought, not the
identity of the person invoking it. And this point is underscored, not undermined, by
Washington v. Glucksberg, which exhorts courts to rely on guideposts for responsible
decisionmaking. 521 U.S. 702, 720 (1997).
Marriage is an enduring relationship carrying tremendous legal, financial, cultural, and
personal significance for any couple who enters into it. A married couple can expect to have
myriad interactions with governments, private parties, and one another over the course of the
marriage, and even after the death of one spouse. Throughout these interactions, a persons
status as a present or former spouse remains critical. In recognition of the monumental
importance of this enduring status, the settled rule applied for centuries throughout our nation
has been to accord universal recognition across state lines to a marriage valid where celebrated,
even if the marriage could not be legally celebrated in the forum jurisdiction. This universal rule
of interstate marriage recognition, while cast as a comity rather than a constitutional principle, is
an essential point in the constellation of protections accorded the institution of marriage. As the
Supreme Court understood in ruling that Virginias ban on recognition of the Lovings out-of-
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 5 of 21
6

state interracial marriage violated due process, Loving, 388 U.S. at 12, the recognition by one
government of a marital status obtained in another is implicit in the concept of ordered liberty,
Glucksberg, 521 U.S. at 721 (internal quotations and citations omitted).
A persons right to carry his or her marriage and marital status wherever the person goes
in this nation accords spouses and their children the dignity of a legally respected and universally
understood relationship. It ensures predictability and stability for the spouses, their children,
employers, and others with whom the couple interacts. This right reflects the intent and
expectations of couples who have legally married. It also reflects the reality that the state of
celebration has bestowed on the couple the enduring status of being married under its laws.
Under the traditional place-of-celebration standard, any couple that has entered into a valid
marriage can count on being respected as married by the federal and state governments,
regardless of where the couple may live or relocate.
Although the states longstanding, uniform place-of-celebration rule has commonly
included an articulated exception for marriages contrary to the strong public policy of the state,
in practice, this exception has rarely applied to void a marriage valid where entered. Our
nations history and tradition of extensive state recognition of marriages entered elsewhere, even
if the marriages could not have been legally obtained in the forum state, reflects the depth of the
liberty interest we all share in having our marriages universally respected.
Furthermore, neither the Full Faith and Credit Clause nor Section 2 of the Defense of
Marriage Act (DOMA), 28 U.S.C. 1738C, insulates Louisianas marriage recognition bans
from due process challenge.

Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 6 of 21
7

ARGUMENT
I. The Fundamental Right To Marry Applies To Same-Sex Spouses.
This Court can decide this case without reaching the fundamental right to marry itself
and the protection it affords to same-sex couples. Nonetheless, Louisianas marriage recognition
bans strike at the heart of the fundamental right to marry, purporting to erase Plaintiffs
marriages.
In case after case, the Supreme Court has reaffirmed not only the right to enter into the
institution of marriage, but also an aspect of that right which makes it most cherished and
meaningful, the right to marry the one you love. The Court has made clear that freedom of
choice of whom to marry is a critical component of that right. These cases demonstrate the
Constitutions respect for our autonomy to make the personal decisions at stake here decisions
about with whom a person will build a life and a family. Moreover, the Supreme Court has
consistently adhered to the principle that a fundamental right, once recognized, properly belongs
to everyone. Henry, 2014 U.S. Dist. LEXIS 51211, at *29. Fundamental rights are thus
defined by the nature of the liberty sought, not by who seeks to exercise the liberty.
The right to marry has long been recognized as fundamental, protected under the due
process guarantee, because deciding whether and whom to marry is exactly the kind of personal
matter about which government should have little say. Webster v. Reproductive Health Servs.,
492 U.S. 490, 564-65 (1989) (Stevens, J., concurring in part and dissenting in part) (freedom of
personal choice in matters of marriage and family life is one of the liberties protected by the Due
Process Clause of the Fourteenth Amendment (emphasis added)); Zablocki v. Redhail, 434 U.S.
374, 387 (1978) (finding burden on right to marry unconstitutional because it infringed freedom
of choice in an area in which we have held such freedom to be fundamental (emphasis added));
Moore v. East Cleveland, 431 U.S. 494, 499 (1977). Indeed, [t]he freedom to marry has long
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 7 of 21
8

been recognized as one of the vital personal rights essential to the orderly pursuit of happiness
by free men. Loving, 388 U.S. at 12 (citation omitted).
Because the right to make personal decisions central to marriage would have little
meaning if the government dictated ones marriage partner, courts have placed special emphasis
on protecting ones free choice of spouse. [T]he regulation of constitutionally protected
decisions, such as where a person shall reside or whom he or she shall marry, must be predicated
on legitimate state concerns other than disagreement with the choice the individual has made.
Hodgson v. Minnesota, 497 U.S. 417, 435 (1990) (emphasis added); see also Roberts v. United
States Jaycees, 468 U.S. 609, 620 (1984). In keeping with the right to autonomy in deciding
whether and whom to marry, Louisiana imposes very few restrictions on who can marry.
5

The scope of a fundamental right is defined by the attributes of the right itself, and not
the identity of the people who seek to exercise it or who have been excluded from doing so in the
past. The Supreme Court has adhered to the principle that a fundamental right, once recognized,
properly belongs to everyone regardless of whether a particular claimant can point to a
historical tradition supporting the claimants ability to exercise that right. For example, in
Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982), the Supreme Court held that an individual
involuntarily committed to a custodial facility because of a disability retained liberty interests,
including the right to freedom from bodily restraint. The Court thus departed from the
longstanding tradition in which people with serious disabilities were viewed as not sharing such
substantive due process rights and were routinely subjected to bodily restraints. See also
Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (liberty interest in controlling the decision whether

5
Louisiana permits persons to marry anyone who is not an ascendant or descendant, nor
closer than the fourth degree, so long as both are unmarried. See La. Civ. Code arts. 88 and
90.
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 8 of 21
9

or not to have children, previously recognized for married persons in Griswold, extended equally
to unmarried persons).
Specifically in the context of the fundamental right to marry, the Supreme Court has
rejected attempts to reframe the right narrowly so as to include only those previously
acknowledged to enjoy that liberty. Thus, the fundamental right to marry could no more be a
right to same-sex marriage than the right enforced in Loving was to interracial marriage, 388
U.S. 1; or in Turner v. Safley to prisoner marriage, 482 U.S. 78 (1987). And, indeed, neither
interracial marriages nor marriages involving inmates had any longstanding support in our
nations traditions. See Planned Parenthood v. Casey, 505 U.S. 833, 847-48 (1992)
([I]nterracial marriage was illegal in most States in the 19th century, but the Court was no doubt
correct in finding it to be an aspect of liberty protected against state interference by the
substantive component of the Due Process Clause in Loving . . . .); Virginia L. Hardwick,
Punishing the Innocent: Unconstitutional Restrictions on Prison Marriage and Visitation, 60
N.Y.U. L. Rev. 275, 277-79 (1985) (right to marry as traditionally understood did not extend to
prisoners).
6

The argument that same-sex couples seek a new right rather than the same right
exercised by others makes the identical mistake of Bowers v. Hardwick, 478 U.S. 186 (1986),
corrected in Lawrence, 539 U.S. 558. In a challenge by a gay man to Georgias sodomy statute,
Bowers recast the right at stake, shared by all, to consensual intimacy with the person of ones
choice, to a claimed fundamental right of homosexuals to engage in sodomy. Id. at 566-67

6
The right to marry traditionally did not include a right to remarriage after divorce, but that
also changed. See Boddie v. Connecticut, 401 U.S. 371, 376 (1971) (violation of due
process to impose fees on indigent as condition to seek divorce, the only way to be free from
prohibition against remarriage). Likewise, after Zablocki, 434 U.S. 374, the right to marry
could not be withheld based on a parents unwillingness or inability to support children from
a prior relationship.
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 9 of 21
10

(quoting Bowers, 478 U.S. at 190). Significantly, Lawrence overruled Bowers, holding that
Bowerss constricted framing fail[ed] to appreciate the extent of the liberty at stake.
Lawrence, 539 U.S. at 567.
Defendants attempt to limit the fundamental right to marry at issue here to the right to
marry a person of the same sex finds no support in, and indeed is undermined by, Glucksberg,
521 U.S. 702. Glucksberg does not support constricting a long-honored fundamental right to
deny it to those historically excluded from the freedom to exercise it. Glucksberg focused on
liberty interests shared by all individuals, not just those in the majority, and found that the liberty
interest advanced for assistance with suicide was not sufficiently grounded in history to
constitute a fundamental right. It is entirely different, and contrary to constitutional standards, to
define a fundamental right so narrowly as to exclude a group of individuals from sharing it.
Turner, which addressed whether marriage between a prison inmate and an un-
incarcerated person qualifies as a constitutionally protected marital relationship despite
differences from traditional marriages, demonstrates this. Turner, 482 U.S. at 96. Rather than
dismiss the claim in that case because the union would lack physical companionship, sexual
intimacy, and shared short-term goals, the Court unanimously found that many of the incidents
of marriage, like the religious and personal aspects of the marriage commitment, are unaffected
by incarceration and are sufficient to form a constitutionally protected marital relationship in
the prison context. Id. Turner thus definitively established that the fundamental right to marry
does not vanish merely because the state points to an attribute that differs from prevailing
notions of traditional marriage.
7


7
Another way of framing this issue is that the exercise urged by Glucksberg in refining the
asserted right must involve legally relevant limitations. See, e.g., U.S. Citizens Association
v. Sebelius, 705 F.3d 588, 601 (6th Cir. 2013) (rejecting plaintiffs assertion that the
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 10 of 21
11

The history of marriage belies Defendants argument that marriage, as a fundamental
right, is understood only in static terms. For example, marriage laws have undergone substantial
changes in past generations to end subordination of married women and race-based entry
requirements. Marriage laws, through court decisions and legislation, have undergone profound
changes over time and are virtually unrecognizable from the way they operated a century ago.
See generally Nancy F. Cott, Public Vows: A History of Marriage and the Nation (2000).
And yet, couples continue to come together, join their lives, and form new families, and
marriage continues to support and stabilize them. The Supreme Court confirmed in Windsor that
the due process guarantee protects the rights of same-sex couples to the essential dignity,
security, and tangible legal and financial protections that marriage offers. See 133 S. Ct. at
2694-97.
II. Louisianas Refusal To Recognize Existing Marriages Of Same-Sex Couples Entered Out
Of State Violates Constitutionally Protected Fundamental Marriage Rights.

The constitutional due process right not to be deprived of ones already-existing legal
marriage and its attendant benefits and protections is a deeply-rooted aspect of the due process
protections long accorded to existing marital, family, and intimate relationships. Obergefell v.
Wymyslo, 962 F. Supp. 2d 968, 978 (S.D. Ohio 2013)
8
; see also Glucksberg, 521 U.S. at 720.

Affordable Care Acts individual mandate implicate[s] the fundamental liberty right . . . to
refuse unwanted medical care, and instead recognizing the plaintiffs fiscally-focused
request as protection of economic rights through substantive due process). Here,
Defendant can offer nothing to justify characterizing the right at issue as a new right to
same-sex marriage, except that overwhelming discrimination prevented lesbian and gay
couples from laying claim to their right to marry until recent years. Louisianas asserted
justifications for differential treatment, proceeding cautiously and preserving the tradition of
man-woman marriage, merely presuppose rather than justify the legitimacy of the
historical limitation in the first place.

8
See also Henry, 2014 U.S. Dist. LEXIS 51211, at *29-30; De Leon v. Perry, No. SA-13-
CA-00982-OLG, 2014 U.S. Dist. LEXIS 26236, at *62 (W.D. Tex. Feb. 26, 2014) (noting
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 11 of 21
12

The long line of decisions recognizing the significance of, and protections accorded, marital
relationships would be meaningless if states could unilaterally refuse to recognize the marriages,
once entered, of disfavored groups, thereby depriving these spouses of their constitutionally-
protected liberty.
As the Supreme Court noted in Glucksberg, our [n]ations history, legal traditions, and
practices provide guideposts to discern the contours of constitutionally-protected fundamental
liberties. 521 U.S. at 721; see also Lawrence, 539 U.S. at 571-72 ([O]ur laws and traditions in
the past half century are of most relevance here.). The Due Process Clause protects rights
implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they
were sacrificed. Glucksberg, 521 U.S. at 720-21 (internal quotations and citation omitted).
Throughout our nations history, legal traditions, and practices, marriages, once entered, have
been cloaked with a wide swath of protections. These range from rights in matters of sexual
intimacy and reproduction, Griswold, 381 U.S. 479; to marital presumptions protecting the legal
rights of both spouses as parents from intrusions even by a childs genetic parent, Michael H. v.
Gerald D., 491 U.S. 110, 124 (1989); to access to government benefits (e.g. Social Security
benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less
tangible benefits. Turner, 482 U.S. at 96. See also Zablocki, 434 U.S. at 397 n.1 (1978)
(Powell, J., concurring) ([T]here is a sphere of privacy or autonomy surrounding an existing
marital relationship into which the State may not lightly intrude . . . (emphasis added)).

Windsors holding that out-of-state marriage recognition . . . was a right protected under the
Constitution, and concluding likelihood of success that plaintiffs will demonstrate Texas
lacked even rational basis for withholding recognition to same-sex couples marriages, in
violation of due process); Bourke v. Beshear, No. 3:13-CV-750-H, 2014 U.S. Dist. LEXIS
17457, at *22 (W.D. Ky. Feb. 12, 2014) (finding reasoning in Windsor about the legitimacy
of laws excluding recognition of same-sex marriages [] instructive, and concluding that
Kentucky laws denying recognition of valid out-of-state marriages of same-sex couples are
unconstitutional).
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 12 of 21
13

Notably, the Supreme Court has made emphatically clear that couples have fundamental
vested rights to have their marriages accorded legal recognition and protection not just in the
jurisdiction where entered, but also across state lines. In Loving, the Supreme Court struck down
not only Virginias law prohibiting interracial marriages within the state, but also its statutes
denying recognition to and criminally punishing such marriages entered outside the state. 388
U.S. at 4, 12. It did so in a case involving a couple already married, who had celebrated their
nuptials in the District of Columbia and then been prosecuted for marrying out of state on return
to their Virginia home. Id. at 2-3. Moreover, the couple had purposely evaded their domicile
states law in order to enter into a marriage expressly prohibited and denied recognition there.
Significantly, the Court held that Virginias statutory scheme, including its penalties on out-of-
state marriages and voiding of marriages obtained elsewhere, deprive[d] the Lovings of liberty
without due process of law in violation of the Due Process Clause of the Fourteenth
Amendment. Id. at 12.
The expectation that ones marriage, once entered, will be respected throughout the land
is indisputably deeply rooted in [o]ur Nations history, legal traditions, and practices.
Glucksberg, 521 U.S. at 721. It is so elemental as to be implicit in the concept of ordered
liberty. Id. Historically, certainty that a marital status once obtained will be universally
recognized has been understood to be of fundamental importance both to the individual and to
society more broadly: for the peace of the world, for the prosperity of its respective
communities, for the well-being of families, for virtue in social life, for good morals, for
religion, for everything held dear by the race of man in common, it is necessary there should be
one universal rule whereby to determine whether parties are to be regarded as married or not. 1
Joel Prentiss Bishop, New Commentaries on Marriage, Divorce, and Separation 856, at 369
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 13 of 21
14

(1891). As one federal court put it 65 years ago, the policy of the civilized world [] is to sustain
marriages, not to upset them. Madewell v. United States, 84 F. Supp. 329, 332 (E.D. Tenn.
1949).
Accordingly, interstate recognition of marriage has been a defining and essential feature
of American law, enshrined in common law and legislation as a pillar of domestic relations
jurisprudence. The longstanding, universal rule of marriage recognition dictates that a marriage
valid where celebrated is valid everywhere. See, e.g., Joseph Story, Commentaries on the
Conflict of Laws 113, at 187 (8th ed. 1883) (The general principle certainly is . . . that . . .
marriage is decided by the law of the place where it is celebrated.); Fletcher W. Battershall, The
Law of Domestic Relations in the State of New York 7-8 (1910) (describing the universal
practice of civilized nations that the permission or prohibition of particular marriages, of right
belongs to the country where the marriage is celebrated).
Enforcement of this universal rule has long served public policy, common morality, and
the comity of nations. James Schouler, A Treatise on the Law of Domestic Relations 47 (2d ed.
1874). To this day, the place-of-celebration rule advances critical functions in a nation where a
married couple may live in, move through, and interact with multiple state sovereigns whose
marriage laws may vary. See Williams v. North Carolina, 317 U.S. 287, 299 (1942) (the
prospect of being married in one state and unmarried in another is one of the most perplexing
and distressing complication[s] in the domestic relations of . . . citizens. (internal quotations and
citation omitted));
9
In re Lenherr Estate, 314 A.2d 255, 258 (Pa. 1974) (In an age of

9
Williams, requiring North Carolina to give full faith and credit to a Nevada divorce decree
in conflict with North Carolina public policy, emphasized the crucial reasons a single states
laws must dictate an ongoing status of such personal significance. See 317 U.S. at 300-01.
The Supreme Court in Williams recognized the importance to the couple of a single clear
answer as to their marital status that would apply both in Nevada and North Carolina, and
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 14 of 21
15

widespread travel and ease of mobility, it would create inordinate confusion and defy the
reasonable expectations of citizens whose marriage is valid in one state to hold that marriage
invalid elsewhere.).
The rule of recognition protects from the serious harm, disruption, and instability that
results if those who are legally married cannot rely upon their marital status. Under the rule, the
couple can plan a future together in which their familys legal status will remain intact and
permanent, regardless of the local government with which they may interact. It also dissuades
married couples from disavowing their own obligations to each other and to third parties. A
couple knits their lives together through marriage, making promises of support and care for
better or for worse. Griswold, 381 U.S. at 486. The place-of-celebration principle ensures that
married spouses cannot repudiate their marital status and their obligations based on where they
are located. It prevents such perverse results as allowing a person who is legally married in
one state to be treated as single and enter into a new marriage with a second spouse in another
state. Joanna Grossman, Resurrecting Comity: Revising the Problem of Non-Uniform Marriage
Laws, 84 Or. L. Rev. 433, 472 (2005). This venerable rule confirms the parties expectations, it
provides stability in an area where stability (because of children and property) is very important,
and it avoids the potentially hideous problems that would arise if the legality of a marriage
varied from state to state. William M. Richman & William L. Reynolds, Understanding
Conflict of Laws 119[c] (3d ed. 2002); see also Joseph William Singer, Same Sex Marriage,
Full Faith and Credit, and the Evasion of Obligation, 1 Stan. J. C.R. & C.L. 1, 4-6 (2005)
(summarizing interests underlying place-of-celebration rule).

throughout the nation. The guarantee of due process likewise prohibits subjecting spouses
to the discriminatory refusal of some states to honor their lawfully obtained marital statuses.
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 15 of 21
16

This principle is so strong that it has commonly been applied by domicile states to
validate marriages even when couples purposely left the home state to evade its marriage
prohibition and marry in a more favorable jurisdiction. These couples nevertheless returned
home entitled to recognition of their marriages. Amid the confusion of state nuptial policies,
the courts constructed a series of rules that sanctioned the evasion of most statutory controls on
matrimony. [J]udges gave their blessing to couples who shopped for a forum that would
accept their match. Michael Grossberg, Governing the Hearth: Law and the Family in
Nineteenth-Century America 295-96 (1985).
To be sure, there is a stated exception to the place-of-celebration rule where the out-of-
state marriage would violate strong public policies of the domicile state. Yet in practice, the
public policy exception has been infrequently invoked to invalidate a marriage valid where
entered. Instead, courts repeatedly indicate that they have the discretion to use such a public
policy exception but then validate the out-of-state marriage following the general rule in favor of
recognition. Barbara J. Cox, Same-Sex Marriage and the Public Policy Exception in Choice-of-
Law: Does It Really Exist?, 16 Quinnipiac L. Rev. 61, 66 (1996). Although cases invalidating
out-of-state marriages exist, by widespread practice in this country, [courts] have been quite
reluctant to use the exception and quite liberal in recognizing marriages celebrated in other
states. Id. at 68. The mere fact that a marriage is absolutely null when contracted in Louisiana
does not mean that such a marriage validly performed elsewhere is automatically invalid as
violative of a strong public policy. Ghassemi v. Ghassemi, 998 So. 2d 731, 743 (La. Ct. App.
2008).
10


10
Louisianas Supreme Court did decline to validate a Mississippi common law marriage,
the status of which it questioned initially under Mississippis law, after finding the marriage
was contracted in bad faith. Brinson v. Brinson, 233 La. 417, 96 So. 2d 653 (1957).
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 16 of 21
17

Indeed, invalidation has generally been reserved for marriages that violate such strong
principles of state public policy that the parties to the marriage are subject to criminal
prosecution. See, e.g., Rhodes v. McAfee, 457 S.W.2d 522, 523-24 (Tenn. 1970) (out-of-state
marriage between ex-stepfather and stepdaughter was void where such marriage could be
prosecuted as felony in Tennessee); State v. Bell, 66 Tenn. 9 (1872) (refusing to recognize out-
of-state interracial marriage, then criminalized in Tennessee, as defense to violation of
Tennessee fornication law).
The bans at issue in this case are analogous to the ignoble state bans on recognition of
interracial marriages, struck down in 1967 in Loving. State anti-miscegenation laws were the
other historically noteworthy national departure from the prevailing place-of-celebration
standard and the constitutional due process principles it advances. Only in those states with
anti-miscegenation statutes can one find consistent and repeated use of public policy exceptions
to refuse to recognize otherwise valid out-of-state marriages. Once the Supreme Court outlawed
such refusals as unconstitutional, the public policy exception fell into disuse.
11
Cox, 16
Quinnipiac L. Rev. at 67 (footnotes omitted). Indeed, until marriage for same-sex couples
entered the national stage, the public policy exception had grown nearly obsolete. Singer, 1
Stan. J. C.R. & C.L. at 40; see also Andrew Koppelman, Symposium, Interstate Recognition of
Same-Sex Marriages and Civil Unions: A Handbook for Judges, 153 U. Pa. L. Rev. 2143, 2148
(2005) (public policy exception had become archaic).
Thus in historical and contemporary times, our nation has followed a universal standard
of honoring marriages wherever entered, even when the marriage was contrary to the domicile

11
Notwithstanding bans on recognition of interracial marriages, the force of the principle of
universal recognition led some state courts nonetheless to accord recognition to such
marriages entered out of state. See, e.g., Miller v. Lucks, 36 So. 2d 140 (Miss. 1948).
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 17 of 21
18

states public policy and express law. This legal tradition has nurtured and protected validly-
entered marriages, consistent with the constitutional protections due to the enduring and
intimate status of marriage. Louisianas marriage recognition bans, categorically withholding
recognition to one class of marriages, dramatically break from this tradition, with only our
nations unconstitutional legacy of interracial marriage bans for precedent. They represent
[d]iscriminations of an unusual character, departing from Louisianas and the nations
history and tradition of affording legal respect to marriages validly entered in other
jurisdictions. Windsor, 133 S. Ct. at 2692 (citation omitted); see also Lawrence, 539 U.S. at
568-73 (relying on historical lack of enforcement of sodomy bans and absence of laws singling
out same-sex couples for punishment, as well as growing obsolescence of bans on sexual
intimacy, as guideposts in finding state sodomy prohibitions unconstitutional).
12

III. Neither The Full Faith And Credit Clause Nor Section 2 Of DOMA Excuses Louisiana's
Violation Of Plaintiffs Due Process Rights.

Contrary to Defendants contentions, neither the Full Faith and Credit Clause nor Section
2 of DOMA, promulgated under that Clause, is a defense to Louisianas denial of recognition to
married same-sex couples. See Defendants Memorandum at 8-9.
The Full Faith and Credit Clause does not authorize Congress to enact discriminatory
provisions violating independent constitutional rights. The power the Constitution grants it also
restrains. And though Congress has great authority to design laws to fit its own conception of
sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth

12
Louisianas bans also infringe on other related fundamental liberty interests in autonomy
over personal decisions relating to . . . family relationships, Lawrence, 539 U.S. at 573;
see also Santosky v. Kramer, 455 U.S. 745, 753 (1982), as well as parenting rights, by
precluding same-sex married couples with children from securing legal recognition of their
parent-child relationships through established legal mechanisms available to married
parents, see Henry, 2014 U.S. Dist. LEXIS 51211, at *30-31.
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 18 of 21
19

Amendment. Windsor, 133 S. Ct. at 2695. The Supreme Court has long maintained that [i]f
there be any conflict between constitutional provisions, the one[s] found in the amendments
must control, under the well-understood rule that the last expression of the will of the lawmaker
prevails over an earlier one. Schick v. United States, 195 U.S. 65, 68-69 (1904).
Congress thus could no more have used its powers under the Full Faith and Credit Clause
to insulate the marriage recognition ban in Loving from due process and equal protection
requirements than it can insulate these marriage recognition bans through Section 2 of
DOMA. Congress has no affirmative power to authorize the States to violate the Fourteenth
Amendment and is implicitly prohibited from passing legislation that purports to validate any
such violation. Saenz v. Roe, 526 U.S. 489, 508 (1999); see also Graham v. Richardson, 403
U.S. 365, 382 (1971) (Congress does not have the power to authorize the individual States to
violate the Equal Protection Clause.); De Leon, 2014 U.S. Dist. LEXIS 26236, at *64-65
(rejecting claim that Section 2 of DOMA permits Texas to refuse to recognize out-of-state
marriages between persons of the same sex).
Neither the Full Faith and Credit Clause nor Section 2 of DOMA justifies the denial of
married same-sex spouses fundamental right to recognition of their marriages.
IV. Louisianas Marriage Recognition Bans Are Subject To Strict Scrutiny.

The marriage recognition bans cannot survive any level of scrutiny and so violate the
guarantee of due process, however in that the rights infringed are fundamental marriage rights,
strict scrutiny should be applied to determine whether the prohibition on recognition is
necessary to promote a compelling state interest. Reno v. Flores, 507 U.S. 292, 302 (1993)
(law restricting fundamental rights must be narrowly tailored to serve a compelling state
interest).
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 19 of 21
20

CONCLUSION
This court should find unconstitutional Louisianas bans on recognition of marriages
validly entered in another jurisdiction, and permanently enjoin their enforcement.

Dated: May 12, 2014
Respectfully submitted,
/s/ Justin P. Harrison
Justin P. Harrison (La Bar No. 33575)
Legal Director
ACLU Foundation of Louisiana
P.O. Box 56157
New Orleans, Louisiana 70156
Tel. (504) 522-0628
Email: jharrison@laaclu.org

Attorney for Amici Curiae




Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 20 of 21
21

CERTIFICATE OF SERVICE

I, Justin P. Harrison, hereby certify that on May 12, 2014, the foregoing document was
filed with the Clerk of Court using the CM/ECF system, which will automatically send a copy to
the following:
Richard Gerard Perque
Law Office of Richard G. Perque, LLC
700 Camp St.
New Orleans, LA 70130
504-681-2003
richard@perquelaw.com

Scott J Spivey, Esq
A Professional Law Corporation
815 Dauphine Street, Suite D
New Orleans, LA 70116
504-684-4904
scott@spiveyesq.com

Attorneys for Plaintiffs
Stuart Kyle Duncan
Louisiana Department of Justice
P. O. Box 94005
Baton Rouge, LA 70804-9005
202-714-9492
kduncan@duncanpllc.com

Attorney for Defendants

Dated: May 12, 2014
/s/ Justin P. Harrison
Justin P. Harrison (La Bar No. 33575)
Case 2:13-cv-05090-MLCF-ALC Document 92 Filed 05/12/14 Page 21 of 21